However, to sue someone, there must be a legally-acceptable basis for the lawsuit. In this instance, there are two possible legal theories for a lawsuit, but neither one meets the legal requirements.

The first possible legal basis for a lawsuit would be Copyright on the Choreography. However, Copyright law only protects Choreography that is meant to be performed by skilled, professional dancers, and where the choreographer has preserved the dance with notations or video to be used by professional dancers to create their performance. Copyright law, at this time, does not protect a simple dance movement that is a fad to be performed by anyone.

This is a cool video of the Backpack Kid judging different people trying to Floss. As you can see, the dance is one simple move. However, not everyone can get the hang of it.

Below, you can read the circular put out by the U.S. Copyright Office about Copyright of Choreography. The Copyright Office only recognizes choreography that is notated or set in tangible form, meant to be performed by skilled, professional dancers. It does not recognize short routines meant to be performed by everyday people. Unless the U.S. Copyright Office decides to start recognizing common fad dances as having copyright, the copyright portion of this lawsuit cannot succeed. Flossing is similar to the olden days fad of doing the twist -- it is a simple movement meant for everyone to do it.

Another potential basis for a lawsuit by the Backpack Kid against the video games would be the California Right of Publicity, which protects commercial use of a person's name, voice, signature, photograph, and likeness. However -- the video games are not using any of these things. Rather, the games are having animated characters doing the Floss dance.

These lawsuits are likely to be an extremely expensive mistake for the Backpack Kid. Lawsuits are very expensive and can destroy him financially. That is a shame, because basic legal research would have shown that neither of these causes of action can succeed.

The Backpack Kid still has lots of ways he can make money by capitalizing on his newfound fame -- including personal appearances, television appearances, and by developing some trademarks based on his nickname and dance, and by creating a line of merchandise, such as shirts, posters, greeting cards, action figures, games, etc. We wish him the best in such creative ventures! Wasting his time and money on a most likely to fail lawsuit is a shame and can destroy him not only financially, but popularity-wise, too, since people will become afraid to deal with him and his dance routine, for fear of becoming a target of a frivolous lawsuit.

Sue Basko

Sue Basko is a lawyer in California, Illinois, and is an attorney and counsellor of the U.S. Supreme Court. She works in law for music, film, design, indie journalism, protest law, and land use planning. She earned a Juris Doctorate graduating maga cum laude. She has a B.A. in Film and Video and attended graduate school in Radio/ TV/ Film with an emphasis on digital production, media law, and management. She has produced and directed hundreds of low-budget TV shows and videos, as well as doing video, audio, and lighting tech on many large-scale events. She made shows for such organizations as Chicago Public Libraries, Chicago Public Schools, National Strategy Forum, Art Institute of Chicago. She hired crews and handled budgets. She directed tech on a large scale rave style dance floor, with special effects and computer-controlled lights. She worked staff at Northwestern University School of Law with the classes in Trial Practice, Trial Advocacy, Negotiations, and National Institute of Trial Advocacy (NITA).

Susan Basko assisted with a 2012 study conducted by OSCE-ODIHR (Organization for Security and Cooperation in Europe, Office of Democratic Institutions and Human Rights). She participated in a summit of many nations in Vienna, Austria, where her legislative proposals regarding independent media use in protests/ public assemblies were adopted and sent to the 70+ member nations.

Recently, she attended a semester-long seminar course taught by Deray McKesson of Black Lives Matter fame at the University of Chicago Institute of Politics. She also participated in Harvard University's School for Resistance.

CONTACT easily by email:

suebaskomusic@gmail.com

Notice

Folks, if it is not on my blogs (see links on sidebar), or on my owntwitter or my facebook, it is not me. I am never involved in anything distasteful or questionable. If you see something like this, it is not my words or work, but that of stalkers/ crazies.